England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OP APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(MASTER JACOB)

		Royal Courts of Justice.
		2nd December 1976.

THE MASTER OP THE ROLLS: One thousand cases of whisky were stolen. It was on Friday evening, 24th January 1975. A lorry driver drove into a lorry park at North Woolwich. He was driving a prime mover pulling a trailer on which was a big container. . Inside it there were 1,000 cases of Buchanan's Scotch whisky. He left the trailer and container unattended all over the weekend. He did not return until Tuesday morning. By that time it had gone. Someone had come with another prime mover and taken the whole lot away, stolen it and disposed of it.

Now here is the point of the case. The value of that whisky in England was £37,000. If it had been sold to a trader in England, that is the sum it would fetch. But four-fifths of that sum was made up of excise duty payable to the Revenue. The actual value in bond of the 1,000 cases was only £7,000, but the excise duty was £30,000. That duty had to be paid before the whisky could be got out of bond and marketed in England. Buchanan, the owners of the whisky, had not actually paid the excise duty to the Revenue. The reason was because the whisky was intended for export. It was on its way from Glasgow to Teheran. It had come out of the bonded warehouse in Glasgow. It had been loaded immediately into the container and secured. Seals were affixed. The container, so secured, was to have been driven to Felixstowe, lifted on board a container ship, carried across to the Europort at Rotterdam, driven thence across Europe and the Bosphorus, through Turkey to Iran. If everything had gone according to that plan, Buchanan would not have had to pay any excise duty. The buyers in Iran might have had to pay Iranian customs duty, but Buchanan would have paid no duty at all. But when it was stolen in England, Buchanan came under our own Customs & Excise Act, 1952. Under Section 85 of the Act the Revenue authorities were entitled to - and did - call upon Buchanan to pay the whole of the duty themselves. The reason is plain. It is to prevent any abuse of the facilities granted to exporters. It is done so as to deter Buchanan or their men from disposing of the whisky in England "on the sly". Buchanan paid the £30,000 excise duty to the Revenue. But if the whisky had been stolen in Holland or any other country on the way to its destination - other than England - Buchanan would not have had to pay that £30,000 or any of it. The consignees might have had to pay something in the country of loss - depending on the law of that country - but Buchanan would not have had to pay anything.

Now Buchanan sue the carriers for the loss of the goods. The carriers admit that they are liable, but the question is: What is the amount which Buchanan can recover? Is it only the £7,000, the value of the whisky in bond at Glasgow? Or is it the £7,000 plus the £30,000 excise duty? The carriers say it is only £7,000, Buchanan says it is £37,000. It is clear beyond doubt that Buchanan have suffered damage in the full £37,000, but can they recover it?

If this case rested on the common law of England, Buchanan would recover the whole £37,000: for it was plainly damage directly caused by the negligence of the carriers. But the case does not rest on the common law. The carriage was undertaken by the carriers subject to "C.M.R conditions". Those are the terms and conditions which were agreed at an International Convention signed in Geneva in 1956. They were designed so as to cover the important trans-continental traffic by road. They are given the force of law in England by the Carriage of Goods by Road Act, 1965. Section 1 says that the provisions of the Convention "as set out in the Schedule to this Act shall have the force of law in the United Kingdom".

Article 23(1)• The compensation provisions are contained in Article 23. Compensation is to be assessed very differently from the rules of the common law. The common law takes the value of the goods at the place and time at which they ought to have been delivered by the carrier. Article 23(1) says that compensation is to be "calculated by reference to the value of the goods at the place and time at which they were accepted for delivery". What was the place and time of delivery here? It was at Glasgow. The whisky was accepted at the door of the bonded warehouse. It was accepted for delivery to Felixstowe for export.

Article 23(2). Article 23(2) says that:

"The value of the goods should be fixed according to the commodity exchange price, or, if there is no such price, according to the current market price, or if there is no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality".

It is agreed that there was here no commodity exchange price. But was there a market price? Buchanan submit that it was the market price at which the whisky could be sold at the door of the warehouse in Glasgow to a purchaser for the home market. That is, £37,000. Alternatively they say that £37,000 was the normal value in Glasgow of goods of the same kind and quality. That argument sounds fair enough. But I do not think it should be accepted. Test it by supposing that the loss was not occasioned by theft but by an Act of God or inevitable accident - on the way from Glasgow to Pelixstowe - so that all the bottles were broken and the whisky ran out and went literally "down the drain". Buchanan would not have been liable to pay the excise duty of £30,000. The loss would have been due to a "legitimate cause" which would excuse Buchanan from payment under Section 85. Take another instance. Suppose that the whisky was not stolen in England but somewhere on the continent of Europe or in Asia before it was delivered to the consignee in Teheran. Buchanan would not have been liable to pay the excise duty of £30,000. The consignee might have had to pay something somewhere depending on the law of the country where it was stolen: but Buchanan would not have had to pay anything. I cannot think that Buchanan could claim compensation for the £30,000 if they were never liable to pay it. This throws much light on the words "the value of the goods at the place and time where they were accepted for delivery". That value must be ascertained at that place and time. It cannot vary according to subsequent events, that is, whether they are lost or stolen in England or anywhere else.

It^- follows to my mind that for the purposes of Article 23(1) the value of this whisky was its value when it was in bond at the door of the bonded warehouse in Glasgow before excise duty was paid. That value was £7,000 and no more. That deals with section 23(1)•

Article 23(4). Article 23(4) says that:

"In addition, the carriage charges, custom duties and other charges incurred in respect of the carriage of the goods shall be refunded in full in case of total loss and in proportion to the loss sustained in case of partial loss, but no further damages shall be payable".

Buchanans submit that the £30,000 excise duty was a charge incurred in respect of the carriage of the goods". I must say that, if .this Article is to be construed according to our traditional rules of interpretation, the £30,000 was not such a charge. Strictly interpretated, those words comprehend only charges for the actual carriage of the goods and other charges incurred in respect of the carriage, such as packing, insurance, certificate of quality, and so forth. Buchanans did not pay this £30,000 "in respect of the carriage of the goods". They paid it in consequence of the theft of the goods, that is, the non-carriage of them.

But, here comes the point. This Article 23(4) is an agreed clause in an international convention. As such it should be given the same interpretation in all the countries who were parties to the convention. It would be absurd that the Courts of England should interpret it differently from the Courts of France, or Holland, or Germany. Compensation for loss should be assessed on the same basis, no matter in which country the claim is brought. We must, therefore, put on one side our traditional rules of interpretation. We have for years tended to stick too closely to the letter - to the literal interpretation of the words. We ought, in interpreting this convention, to adopt the European method. I tried to describe it in the case of Bulmer v. Bollinger (1974) 1 Chancery 401 at pages 425/6. Some of us recently spent a couple of days in Luxembourg discussing it with the members of the European Court, and our colleagues in the other countries of the nine.

We had a valuable paper on it by the President of the Court -H. Xutscher - which is well worth studying. They adopt a method which they call in English by strange words - at any rate they were strange to me - the "schematic and teleological" method of interpretation. It is not really so alarming as it sounds. All it means is that the judges do not go by the literal meaning of the words or by the grammatical structure of the sentence. They go by the design or purpose which lies behind it. When they come upon a situation which is to their minds within the spirit - but not the letter - of the legislation, they solve the problem by looking at the design and purpose of the legislature - at the effect which it was sought to achieve. They then interpret the legislation so as to produce the desired effect. This means that they fill in gaps, quite unashamedly, without hesitation. They ask simply: What is the sensible way of dealing with this situation so as to give effect to the presumed purpose of the legislation? They lay down the law accordingly. If you study the decisions of the European Court, you will see that they do it every day. To our eyes - shortsighted by tradition - it is legislation, pure and simple. But, to their eyes, it is fulfilling the true role of the Courts. They are giving effect to what the legislature intended, or may be presumed to have intended. I see nothing wrong in this. Quite the contrary. It is a method of interpretation which I advocated long ago in Seaford Court Estates v. Asher (1949) 2 King's Bench at pages 498/9. It did not gain acceptance at that time. It was condemned by Lord Simonds in the House of Lords in Magor and St. Mellons U.D.C. v. Newport Corporation (1952) Appeal Cases 189, as a "naked usurpation of the legislative power". But the time has now come when we should think again. In interpreting the Treaty of Rome (which is part of our law) we must certainly adopt the new approach. Just as in Rome, you should do as Rome does. So in the European Community, you should do as the European Court does. So also in interpreting International Convention (such as we have here) we should do likewise. We should interpret it in the same spirit and by the same methods as the judges of the other countries do. So as to obtain a uniform result. Even in interpreting our own legislation, we should do well to throw aside our traditional approach and adopt a more liberal attitude. We should adopt such a construction as will "promote the general legislative purpose underlying the provision". This has been recommended by Sir David Renton and his colleagues in their most valuable report on the Preparation of Legislation - see Command Paper 6053 at pages 135/148. There is no reason why we should not follow it at once without waiting for a statute to tell us.

Looking at Article 23(4) in this light, it seems to me that there is a gap in it - or, at any rate - in the English version of it. It speaks only of the charges incurred "in respect of the carriage of the goods", but says nothing of the charges consequent on the loss of the goods. I think we should fill that gap. I ask myself: What was the intention - the design or purpose - behind it all? It seems to me that it was intended that the sender should not be limited to the value of the goods as defined in Article 23(1), that is, to the value at the place and time of acceptance for carriage. But that he should also be compensated for any additional expense that he incurred directly by reason of the loss. So he should be compensated for any expense which had been rendered useless by reason of the loss of the goods. And, in addition, for any expense to which he had been put as a direct consequence of the loss. We should fill the gap left by the English text so as to achieve this result. Take this very case. The carrier negligently left the whisky unattended, and it was stolen. As a direct consequence, . Buchanans have had to pay £30,000 to the Revenue. It would be most unjust that they should have to bear this expense themselves when it has been brought about solely by the negligence of the carrier. The only sensible solution is that the carrier should compensate the sender for the expense. The men who framed the Convention and agreed to it must be presumed to have intended this. So we should give effect to it, By way of contrast, I do not think the sender could recover his loss of profit. He could not recover any additional value which the goods might have had at their destination over and above their value at the place of sending. That would not be an expense at all. Loss of profit comes within the prohibition at the end of Article 23(4) - "no further damages shall be payable".

I would say a word about the case of Wm. Tatton & Co. Ltd. v. Ferrymasters Ltd. and Another (1974) 1 Lloyd 203. On one item Mr. Justice Browne there applied the traditional method of interpretation of Article 23(4)- He rejected, the expense of the return carriage from Le Havre to England and the subsequent warehousing. But, applying the new method, it seems to me that he should have allowed this expense. It was an expense reasonably incurred in consequence of the negligent carriage.

Article 23(6) and Article 26. If the owner of the goods has "a special interest in delivery" he can declare it in the consignment note and pay a surcharge. On so doing, he can claim higher compensation on that account. This seems to me to cover cases where the sender is expecting a good profit on the goods when they reach their destination; or where he may suffer consequential damage which is not in the nature of an expense incurred by him. In that case he must declare his special interest and pay a surcharge. Otherwise he cannot recover it.

Conclusion. We are told that there have been no decisions so far in other countries on this Article of the Convention. So we feel an especial responsibility in expressing our views on it. Where we lead, others may follow. But I would like to assure them that if it had come first before them, we should only be too glad to follow them.

In my opinion the Buchanans are entitled to recover the full £37,000 from the carriers. I would, therefore, dismiss the appeal.

LORD JUSTICE ROSKILL: In 1965 Parliament enacted the Carriage of Goods by Road Act. This Statute provided that the Geneva Convention of the 19th May 1956 scheduled to that Act should, subject to the provisions of the statute, "have the force of law in the United Kingdom". Chapter IV of the Convention, comprising Articles 17 - 29 inclusive, deals with the liability of the carrier. In this appeal we are concerned primarily with Article 23 (though also indirectly with Articles 24 and 26) which prescribes both the basis of a carrier's liability for compensation in respect of total or partial loss of goods entrusted to him for carriage and how that liability should be calculated. We were told that no previous case under Article 23 had come before the courts of this country. This information was in fact incorrect. Our attention has since the hearing been drawn to a decision of Mr. Justice Browne (as he then was) at first instance in William Tatton v. Ferrymasters Ltd. (1974) 1 Lloyd's Law Reports 203, when the construction of Article 23 was considered. This is, however, the first case under the statute to reach this Court. In answer to the question whether that Article had fallen for consideration in the courts of Prance, West Germany or any other country which was a party to the Convention, we were told that no such decision was known to exist.

This case is, therefore, of considerable importance, for although we are primarily concerned with the interpretation of an English statute, we cannot lose sight of the fact that the Convention, translated into other languages, may fall to be interpreted in the courts of other countries. Mr. Johnson, for the Plaintiffs, helpfully referred us to a commentary on the Convention published in the English language by Dr. Loewe of Austria, which mentions that the commentary has been published in French and Russian as well as in English. Clearly it is desirable that judicial decision in different countries should, so far as possible, be kept in line, just as the courts of this country have endeavoured in the last half century to align their decisions upon the Hague Rules with those of other countries (especially Commonwealth countries) which have given statutory effect to those Rules, as this country did in the Carriage of Goods by Sea Act, 1924. In this connection it is not, I hope, out of place to mention that paragraph 2 of Article 23 of the Schedule to the 1965 Act is textually identical with the second paragraph of the new Article IV Rule 5(b) of the Hague Rules, as amended by the Brussels Convention of the 23rd February, 1968.

These amended Rules are now scheduled to the Carriage of Goods by Sea Act, 1971 - see Scrutton on Charter-Parties (18th edition, 1974) at page 462, though this last mentioned statute is not yet in force in this country. It will thus be seen that the issues to which this appeal gives rise are by no means limited to those arising only under the 1965 Act.

The facts out of which this appeal arises are simple and unhappily of frequent occurrence. The Plaintiffs are a well known firm of whisky distillers. They agreed to sell considerable quantities of whisky to buyers in Iran. The whisky was sold on f.o.b. terms and was to be shipped from Felixstowe in a container. That container was loaded ex-bonded warehouse in Glasgow belonging to the Plaintiffs on what was described as a box trailer belonging to the Defendants, one of whose employees saw fit to leave that vehicle and its contents unaccompanied for a long period in North Woolwich over a weekend towards the end of January 1975. Not surprisingly the box trailer and the whisky both disappeared, the whisky permanently. Liability for negligence was not disputed by the Defendants. The sole question was the quantum of damage. After the loss the Commissioners of Customs & Excise claimed excise duty from the Plaintiffs upon the stolen whisky, and the Plaintiffs, as they were in law bound to do, discharged that obligation which rested upon them under the Customs & Excise Act, 1952. Had the whisky been successfully exported no such duty would have been payable, but because the whisky was stolen in this country excise duty became payable in a sum of nearly £30,000.

Since the f.o.b. value of the whisky was .just over £7,000 and therefore the ex-bonded warehouse value would have been somewhat less, it will be seen the question who, as between the Plaintiffs and the Defendants or more accurately as between their respective insurers,

carries the ultimate liability for this duty is of great inportance, both in terms of money and of legal principle. It was common ground that the contract of carriage between the Plaintiffs and the Defendants was on what are known as C.M.R. conditions, being those conditions scheduled to the 1965 Act. Thus the question we have to decide is -are the Defendants and their underwriters entitled to say that they are liable to the Plaintiffs under those C.M.R. conditions for some £7,000 only and no more, so that the Plaintiffs and their underwriters have to bear the liability for some £30,000 worth of duty, or are the Defendants and their underwriters liable for the entire loss totalling some £37,000 which undoubtedly has been suffered by the Plaintiffs and for which it was accepted they are entitled to recovery from their own underwriters.

Under an order of Mr. Justice Mocatta, after judgment in default had been signed by the Plaintiffs against the Defendants, the matter was referred to Master Jacob for the assessment of damages. The learned Master decided the issue in favour of the Plaintiffs and gave judgment for the full amount claimed. Hence this appeal by the Defendants.

Mr. Buckley for the Defendants accepted, rightly as I think, that but for the C.M.R. conditions, his clients would as a matter of English law have been liable to the Plaintiffs for the full amount. That loss to the Plaintiffs would, as I think, have been caused by the Defendants' breach of contract and duty and therefore would have been wholly recoverable. Reference may usefully be made in this connection to the decision of this Court in Brooks Wharf v. Goodman Brothers (1937) 1 King's Bench 534. But Mr. Buckley strenuously argued before us, as he had before Master Jacob, that the value of the whisky at the place and time at which it was accepted for carriage by the Defendants - see Article 23 paragraph 1 - was no more than the invoice value. Sinoe, as already pointed out, this was the f.o.b. value and not the value ex-bonded warehouse, Glasgow, he subsequently agreed that that invoice value would have to be reduced to some small extent in order to arrive at that ex-bonded warehouse value. Mr. Buckley accepted that such items as carriage and insurance charges would, by reason of paragraph 4 of Article 23, fall to be added to that ex-bonded warehouse value arrived at in accordance with Article 23 paragraphs 1 and 2. The total amount properly recoverable under Article 23 would then be the total arrived at in accordance with the provisions of these three paragraphs, Mr. Johnson argued on the other hand that the value to be calculated under paragraphs 1 and 2 should be inclusive of the excise duty levied upon the Plaintiffs after the loss, or alternatively if that duty were not included in that value, it fell to be added under paragraph 4 of Article 23 as coming within the phrase "other charges incurred in respect of the carriage of the goods". It was common ground that the duty levied on the Plaintiffs was an excise duty and not a Customs duty properly so called.

Now paragraph 1 of Article 23 cannot properly be construed without reference to paragraph 2, for the latter paragraph enacts how the value of the goods at the place and time of acceptance for carriage is to be arrived at. If there is a "commodity exchange price", that is to be taken to be the value. If there is no "commodity exchange price", the value is to be the "current market price". If there is neither, the value is to be "the normal value of goods of the same kind and quality". Thus there are the three alternatives. The first plainly refers to goods regularly dealt with on a recognised commodity exchange. If it be permissible to look at the French text of the Convention, the phrase "d'apres le cours en bourse" strongly supports this view. There is no evidence of any trading in whisky ex-bonded warehouses, Glasgow, on any commodity exchange and therefore this provision can be ignored. I next turn to consider whether there was a "current market price" for whisky ex-bonded warehouse, Glasgow. I can see no evidence of this and therefore I resort to the third alternative, namely the "normal value of goods of the same kind and quality". These last words "kind and quality" must, I think, refer to the description and quality of the goods and not to any question whether they have or have not borne duty. So I ask what was the "normal value" of whisky of the same kind and quality ex-bonded warehouse, Glasgow, on the day on which this whisky was loaded on to the Defendant's box trailer. How at that time that whisky had not borne (and similar whisky ex-bonded warehouse, Glasgow, would not have to bear) duty provided it was in due course duly exported as was then the intention of those concerned with the stolen whisky. Why, therefore, should its "normal value" at that place and time include excise duty which no-one then expected it to have to bear? It and its owners would only have to bear that duty if that whisky were not exported due to some subsequent untoward incident which would enable the Commissioners of Customs & Excise to invoke Section 85 of the Customs & Excise Act, 1952 so as to exact duty not otherwise payable.

Mr. Johnson suggested that unless that excise duty were included in the normal value of that whisky at that place and time, anomalous results would follow. He instanced two lorries coming from Glasgow in convoy on a motorway, one carrying whisky for export and the other carrying identical whisky for distribution in this country, both under identical C.M.R. conditions. The former, he said, at that time would not be liable to duty; the other would have already borne duty. He asked us to imagine that both lorries had been simultaneously hijacked. Unless the duty were included in the normal value of both consignments, one would have identical whisky stolen at the same time with differing values. So one would. But the reason for that is that the former would have to have its normal value determined ex-bonded warehouse in Glasgow, when it would not have been liable to bear duty, and the other ex-warehouse, Glasgow, where it would have borne duty.

A much more anomalous result would follow on Mr. Johnson's argument in a case where instead of export whisky being stolen and duty as a result becoming exigible, that whisky was damaged in a motor accident and disappeared forever down a drain. It was accepted in argument that in such a case, provided the Commissioners were satisfied of that fact, duty would not be exacted under Section 85. Yet in such a case, on Mr. Johnson's argument, the value of that whisky ex-bonded warehouse, Glasgow, should also be inclusive of that duty, even though that duty would not be exigible and a wholly adventitious profit would accrue to the Plaintiffs.

It is, I think, important when considering the construction of Article 23 as a whole to remember that its provisions for determining the liability of a carrier for loss of or damage to goods entrusted to him for carriage radically depart in principle from the basic English common law rule for assessing damages for non-delivery against a carrier whether by land or sea. If - for example - a carrier by sea fails to deliver goods entrusted to him for carriage, his liability is the market value of those goods when they should have been delivered, less of course any savings, and not that market value when he first received those goods into his possession. See Scritton (op.cit.) page 397. Similarly, if a seller of goods fails to deliver to his buyer, the normal measure is the difference between contract and market price at the time when the goods ought to have been delivered. See Section 51 of the Sale of Goods Act, 1893. But the Convention provides otherwise. It takes the relevant value as at the place and point of time when the carrier first receives the goods and then adds to the resulting figure obtained-under paragraphs 1 and 2 of Article 23 any additional loss suffered by the goods owner which legitimately falls within paragraph 4 of that Article, but no further recovery unless the case falls within Article 23 paragraph 6 and thus within Article 24 or Article 26.

I think, therefore, Mr. Buckley is right in his insistence that we must not approach the question of the construction of Article 23 in any way influenced by well established English common law rules for assessing damages for loss of or damage to goods in transit. We are in no way concerned with those rules. We are concerned with and only with different rules which are the subject of international convention. By the English common law rules you look at the value at the end of the intended journey and subtract savings from that value. Under the Convention you look at the value at the beginning of the intended journey and then add to that value any extra losses suffered which properly fall within paragraph 4 of Article 23, or in special cases within Article 24 or Article 26. It is this which Article 23 enacts in order to give the goods owner indemnity for his loss. I agree with what Mr. Justice Browne said in Tatton's case as to irrelevance of the English common law rules: see page 20b of the report.

I have therefore reached the conclusion that the excise duty exacted from the Plaintiffs following the theft of this whisks'- cannot properly be included in its normal value for the purposes of Article 23 paragraphs 1 and 2, and in this respect I find myself unable to agree with Master Jacob.

I turn to consider the alternative way in which Mr. Johnson put the Plaintiffs' case. The learned Master accepted that if his view upon the first point were wrong, the Plaintiffs were entitled to recover on this alternative basis, namely that the exaction of this excise duty was a "charge incurred in respect of the carriage of the goods". I agree that in principle one should not in construing, the text of an international convention, even when scheduled to a United Kingdom statute, apply the ejusdem generis rule, even if as a matter of construction one could find an appropriate genus. That rule of construction is a peculiarity of English law. I am, however, impressed by the submission that in considering what could be said to be "charges incurred in respect of the carriage of the goods" totally lost, one could not legitimately take into account charges such as excise duty (which I think can properly be called "a charge") exacted after the happening of the total loss, for that charge was not incurred "in respect of the carriage of the goods" but as a result of their theft which caused them not to be carried to their destination. This is the view which my Lord the Master of the Rolls takes, if one has regard only to the literal meaning of the English words in question. But Mr. Johnson argued that this was too narrow a view to take of the language of paragraph 4, urging that the scheme for compensation to the goods owner proceeds upon the basis of adding extra charges incurred to the normal value at the place and time the goods first passed into the carrier's possession, and therefore it would be wrong to exclude charges which were incurred by the goods owner only because the carrier inexcusably failed to perform Ms contract of carriage and thereby subjected the goods owner to a substantial extra liability in respect of the goods carried, a liability which would not have been incurred had the contract been properly performed by the carrier. There seems to me to be almost equal force in this latter consideration as in the former.

Why then, in those circumstances, when one is in doubt as to the true construction of the English text of the convention should one deprive oneself of the assistance that is readily to hand in its French text, even though as I have already said we are concerned to construe a United Kingdom statute. As Lord Justice Lawton points out in his judgment in Post Office v. Estuary Radio Ltd. (1963) 2 Queen's Bench 740, this court in a judgment delivered by Lord Justice Diplock (as he then was) at page 760 said that it was legitimate to look at the French and Spanish texts of the convention there in question to resolve an ambiguity in the English Order in Council. It seems to me that following this decision and being in doubt which is the right interpretation to put upon the relevant English phrase, I am entitled to look at the French text of the convention (which so far as I can see from the convention is of equal validitv with the English) in order to gain what assistance I can from its terms. There I find the words "les autres frais a 1'occasion du transport de la marchandise". It does not require a profound knowledge of the French language to gain assistance from these French words for they are quite general in their nature and wide in their compass and in my view quite clearly entitle the Plaintiffs to recover the excise duty in question. See also in this connection what Lord Justice Diplock said at page 757 of the report in the Post Office case as to the relationship of the language of international conventions and that of the municipal law designed to give effect to such conventions.

It is for this reason that, although we did not have the benefit of argument on the point since we were not referred to the decision during the hearing, I agree with the Master of the Rolls that Mr. Justice Browne in Tatton's case adopted too narrow a view of the meaning of these English words in Article 23 paragraph 4 and should have allowed the Plaintiffs to recover the expenses of the return carriage from Le Havre to England and the subsequent warehousing. It does not appear from the report that he was referred to the French text. Had he been referred to it and felt able to make use of it, as we have done, the learned judge might well have taken a different view. I would therefore dismiss this appeal -agreeing as I do with Master Jacob on the second point. But, before concluding this judgment, I would like to support what my Lord has said and what Lord Justice Lawton will say regarding the need to alter the traditional English method of approach to questions of construction of statutes such as the 1965 Act which give effect on a matter of municipal law to international conventions. Some such conventions are drafted in languages other than English. The English language though used may in other cases not be the predominant language of the convention, or in yet other cases may at the most be only of equal force with one or more other European languages. Now that this country has joined the European Community our courts are likely to be increasingly concerned with the interpretation of legislation of one kind or another of which English is not the original or the dominant language. Such legislation is likely also to fall for interpretation in the courts of other members of the Community. It would be disastrous if our courts were to adopt constructions of such legislation different from those of other courts whose method of approach is different and far less narrow than ours merely because of over rigid adherence to traditional - some might call them chauvinist - English methods. Conflict would arise between courts in different jurisdictions within the European Community with the untoward consequences to which my Lords refer and if it became known that if a party sued in one country one result would follow, but if in another country another- a state of affairs which has arisen in other branches of the law between, for example, this country and the United States - what is sometimes known as forum-shopping would be encouraged, whereas within the Community it should be discouraged. I think in the future our courts should be far more ready, in cases where international conventions, especially those affecting the members of the European Community, are under judicial consideration, to assimilate their approach to questions of the construction of our legislation giving effect to those conventions to that which the courts of other members of the Community are likely to adopt. The doctrine once proclaimed in the phrase "Athanasius contra mundum" caused much trouble many centuries ago. That attitude of mind has no place in our courts in the latter part of the twentieth century.

LORD JUSTICE LAWTON: By the Carriage of Goods by Road Act, 1965, Parliament intended "to give effect to the Convention on the Contract for the International Carriage of Goods by Road signed at Geneva on 19th May, 1956 and for purposes connected therewith": see the long title to the Act. The provisions of this Convention "as set out in the Schedule to (the) Act" were to have the force of law in the United Kingdom: see section 1. The Convention as drawn up and signed by the High Contracting Parties to it was in two languages, French and English. Both texts must have been intended to have the same effect. As far as I have been able to find out neither was declared to be the governing text. The Convention applies to every Contract for the carriage of goods by road in vehicles for reward, when the place of taking over goods and the place designated for delivery, as specified in the contract, are situated in two different countries, of which at least one is a Contracting country, irrespective of the place of residence and the nationality of the parties": See Article 1. This convention must have been intended to override both common law and civilian concepts of contract. It follows, in my judgment, that it would be wrong to construe the convention as if it were a United Kingdom statute concerned solely with the regulation of the carriage of goods within the realm. Further, international comity must surely require the United Kingdom courts to construe the Convention in the same way as the courts of other High Contracting parties. Many of these courts do not have the same respect for grammar and literal construction as our courts have: they look to the intent and purpose of the legislation they have to construe and their general law often allows more scope to judicial interpretation than ours does. Since Parliament by the 1965 Act intended to give the force of law to the Convention, in my judgment this Court should look to its intent and purpose even though in so doing some strain may be put upon the grammar and literal meaning of the words. In addition we should not apply rules of construction, such as the ejusdem generis rule, which are not applied outside the common law countries. It is with these general considerations in mind that I turn to the construction of Article 23.

This article is intended to govern the carrier's liability for the total or partial loss of goods. The basis for compensation is not the common law basis for calculating damages for non-delivery. The value of the goods is to be calculated by reference to their value at the place and time they were accepted for carriage, not by reference to their value, as under section 51(3) of the Sale of Goods Act, 1893, when they ought to have been delivered. This striking initial difference is a sharp reminder of the danger of construing the Convention as if it were intended to give effect to the English law of contract for the carriage of goods.

The second paragraph of Article 23 enacts how the value is to be fixed. It was not suggested on behalf of either party that the fixing could be done by reference to a commodity exchange price - there was no such price; nor for the same reason by reference to a current market price. The fixing of value had to be "by reference to the normal value of goods of the same kind and quality". The use of the adjective "normal" is of importance, Mr. Johnson on behalf of the Plaintiffs submitted that this value was the invoice value ex warehouse plus the excise duty which would be payable immediately the whisky left the warehouse in the abseroe of any arrangement made with the Commissioners pursuant to section 89 of the Customs and Excise Act, 1952. In my judgment, this value would not be the "normal value" for any purpose connected with international commerce. The object of the Convention is to regulate the carriage of goods by road between two different countries. That means exporting goods from one country and importing them into another. In international trade the normal value of imported goods is the c.i.f. price when they come in and of exported goods their f.o.b. price when they go out. As between traders in different countries, any special value the goods may have on the home market of the exporting trader is of no interest or concern to the importing trader. It follows, in my judgment, that the starting value for the purpose of calculating the Plaintiffs' compensation is the f.o.b. price of the whisky less the cost of transport and insurance between the warehouse and Felixstowe, the port from which it was to be exported.

The Plaintiffs submitted that even if "normal value" did not take in the excise duty which they had had to pay as a result of the Defendants* negligence in leaving the whisky unattended over a weekend, nevertheless it could be added to the normal value by reason of Article 23(4). The scheme of this article clearly is that the basis of compensation in respect of total or partial loss shall be normal value plus certain additions identified with varying degrees of precision. Consequential damage is excluded unless it can be brought within Article 23(6). The claim against the Plaintiffs for excise duty was made by the Commissioners of Customs and Excise under section 85 of the Customs and Excise Act, 1952. Did it come within the words "other charges incurred in respect of the carriage of the goods"? These words must be construed in their context in Article 23. The object of the Article is to provide for "compensation". This is not a word having an exact legal meaning in English law. In ordinary usage it can take in a wide range of meanings: from total recompense (indemnity) by way of partial recompense to something given as a consolation. This latent ambiguity in the word is at once resolved by turning to the French text of the Convention where Article 23(1) is in these terms 'Quand, en vertu des dispotitions de la presente Convention, une indemnite pour perte totale ou partielle de la marcnandise est mise a la charge du transporteur, cette indemnite est calculee d'apres la valeur de la marchandise au lieu et a l'epoque de la prise en charge". It follows from the French words that the intention of Article 23 is to provide an indemnity subject to limits. As there is a latent ambiguity in the word "compensation" as used in what purports to be an exact reflection in English of what is in the French text, in my judgment this Court can look at the French text to resolve that ambiguity. This was done by this Court in Post Office v. Estuary Radio Ltd.(1968) 2 Queen's Bench 740, per Lord Justice Diplock at page 760G. Since the object of Article 23 is to give an indemnity subject to limits, the principal limits being a financial ceiling and the exclusion of consequential damage, it seems to me that Article 23(4) should be construed broadly. The word "charges" is not a word having a precise legal moaning. In the phrase "carriage charges" it connotes expenses arising under a contract of carriage but in "other charges" it clearly covers expenses which have nothing to do with contract, such as toll bridges charges in the United Kingdom and such imposts as "taxe de ville" and "octroi" in some European countries. The French text is more illuminating. Article 23(4) starts with the words "sont en outre rembourses", once again showing an intention to provide for an indemnity. Then follows ^"le prix du transport, les droits de douane et les autres frais encourus a 1'occasion du transport de la marchandise, en tot elite en cas de perte totale ...". It must be permissible for an English judge to show a modicum of knowledge of a European language which for some centuries in its archaic form was the language of our courts and which in more modern times has been the language of diplomacy. The words "les autres frais encourus a 1'occasion du transport" in my understanding cover more than the English translation of "other charges in respect of the carriage of the goods". The inference which an English lawyer would normally draw from the use of the word "charges" twice in one sentence in a statute namely that "other charges" must bear some relation in meaning to "carriage charges" so as to bring them within the same genus if not the same species, is dissipated by the use of different words in the French text. It is pertinent to remember that the Courts of many of the High Contracting Parties to this Convention would turn to the French text, not the English. It would be a sorry state of affairs if, because of differences of construction, the owner of whisky and tobacco being carried in a container lorry from the United Kingdom to a continental destination could not in the English courts claim from the carrier repayment of the excise duty of any whisky stolen in England but might be able to do so in the French Courts in respect of the sums, if any, payable on tobacco stolen in France, where there is a state monopoly in that commodity.

The French phrase "encourus a 1'occasion" conveys the concept of "arising from", "occasioned by" or "resulting from". The French text has convinced me that the words in the English version of Article 23(4) should be construed as meaning "any other expenses which the owner of the goods has to pay as a result of the carriage of the goods". The payment by the Plaintiffs of excise duty was just such an expense.

I too would dismiss the appeal.

(Order: Appeal dismissed with costs. Leave to appeal to the House of Lords).